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create an ambiguity as to whether the death taxes are to be
paid out of the probate residuary or the trust residuary,
and as to whether decedent intended to apportion taxes.
Thus, the estate contends that the North Carolina
apportionment statute applies in this case.
Respondent contends that under the decedent's will
and trust, death taxes are payable from the decedent's
residuary probate estate without apportionment or, to the
extent that such assets are not sufficient, from trust
property before such property is allocated to the
charitable beneficiary. Accordingly, respondent contends
that the decedent's death taxes reduce the property
available for distribution to the charitable beneficiary
and, thus, reduce the amount of the estate's charitable
deduction.
According to respondent, paragraph 1.02 of the
decedent's will clearly opts out of the North Carolina
apportionment statute by providing that death taxes "shall
be paid out of * * * [the decedent's] Residuary Estate as
an administration expense and shall not be charged against
or recovered from any recipient or beneficiary of the
property taxed". Implicit in respondent's argument is the
assumption that if the decedent's will provides a method
of apportionment of the tax that differs from the method
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